Soldier pleads not guilty to killing wounded Taliban fighter

Captain Robert Semrau, left, walks out of a custody hearing escorted by military police at Canadian Forces Base Petawawa.

Photograph by: David Gonczol
, The Ottawa Citizen

GATINEAU, Que. — Military prosecutors say Capt. Robert Semrau shot and killed a wounded Taliban fighter in a farmer's field in Afghanistan, then told a fellow soldier that he could not live with himself if he allowed another human being "to suffer like that."

In his opening statement Wednesday at Semrau's court martial, prosecution counsel Capt. Thomas Fitzgerald said Semrau fired two tracer bullets at very close range into a Taliban fighter on Oct. 19, 2008.

"Shooting an unarmed, wounded individual who poses no threat to him or to any of the troops under his command is shockingly unacceptable conduct," Fitzgerald said.

In outlining the prosecution's case, Fitzgerald told a five-member military panel that Semrau several times justified the shooting to fellow soldiers as a battlefield mercy killing.

One witness, he said, will testify that Semrau subscribed to what he called a "soldier's pact," an unwritten agreement between comrades to deliver a fatal shot in the event one of them suffered life-altering wounds on the battlefield. It is the prosecution's case that Semrau extended the application of that code to an enemy combatant.

According to Fitzgerald, Semrau told another soldier after the shooting: "You do to the enemy what you would expect him to do to you."

Semrau, 36, of CFB Petawawa, has pleaded not guilty to four charges, including second-degree murder.

Dressed in a green army uniform and wearing glasses, he announced in a steady voice, "Not guilty your honour," when presented with the charges against him.

Court heard that on Oct. 19, 2008, Semrau was commanding a team of three Canadian soldiers embedded with a company from the Afghan National Army. The Canadians' job was to mentor the Afghans about operational tactics and ethical conduct on the battlefield, Fitzgerald said.

At about 11 a.m., the company came under fire from insurgents. An airstrike was called and Apache helicopters responded with deadly force.

When the company of Afghans and Canadians began to move again, Semrau and a fellow soldier, Pte. Steven Fournier, came upon a severely wounded Taliban fighter on a path in a cornfield. The man had been disarmed by Afghan soldiers and was being spat upon and insulted by local police.

An Afghan army captain decided against treating the dying man and instead ordered that his head and jaw be wrapped with a scarf in keeping with Islamic tradition. The man was moving slightly and moaning according to eyewitness accounts, Fitzgerald said.

Semrau concurred with the decision and the Canadians began to move out, only to come across another Taliban fighter, this one without any vital signs.

Fournier suggested that they photograph the dead fighter and return to photograph the wounded insurgent in case he turned out to be a "high value target." Semrau agreed, and the Canadian soldiers, along with their interpreter, Max, returned to the cornfield.

After Fournier took photos of the still-breathing insurgent, Semrau is alleged to have said to him, "Turn around and go or head back; you do not or should not have to see this."

Fournier and the interpreter started to walk back when they heard two gunshots, Fitzgerald said.

Fournier thought it was an ambush. He turned to see Semrau closing the ejection port of his C-8 rifle.

Fitzgerald said the interpreter, Max, will testify that he turned after the first shot to see Semrau firing a second round into the insurgent's body.

"They both agree that after the second shot, the body stopped moving," Fitzgerald said.

The prosecutor said the court martial will also hear from Semrau's superior officer, Maj. Steven Nolan, who will tell the trial that Semrau radioed him about the downed Taliban insurgents.

Nolan is expected to testify that he told Semrau to mentor the Afghans in how to treat and evacuate such casualties.

Fitzgerald said several soldiers will testify that they heard Semrau admit to shooting the wounded Taliban fighter to end his suffering.

An investigation into the incident began after two Afghan soldiers later complained about the incident to Nolan. Canadian military investigators returned to the cornfield to retrieve evidence in the case, Fitzgerald said, in a mission that was "like something out of an Frederick Forsythe or Ian Fleming novel."

In his opening statement, Fitzgerald also criticized as ill-informed those critics of the case who have suggested a second-degree murder charge will be impossible to prove without a body.

The dead insurgent's body has never been recovered, nor has he been identified.

"The absence of a body is not a bar to prosecution and it is not a bar to conviction," Fitzgerald insisted. There is no defence in law for mercy killing. And Fitzgerald noted that the Geneva Conventions impose specific responsibilities on soldiers to collect and treat the wounded.

Semrau is charged with second-degree murder, behaving in a disgraceful manner, and the negligent performance of a military duty. He is the first Canadian soldier charged with murder in connection with a battlefield death.

A five member military panel will decide Semrau's fate in a case that is expected to last until June.

The judge, Lt.-Col. Jean-Guy Perron, told the panel that the case will require them to travel to Kandahar to take evidence. Under terms of the National Defence Act, the Criminal Code applies to all Canadians serving in Afghanistan.

A soldier's battlefield actions are also subject to provisions of the Canadian Forces' Code of Conduct, which forms part of the defence act. That code of conduct, based on the International Law of Armed Conflict, sets out moral limits to war.

Among other things, it says that those who surrender must be disarmed and detained, that all detainees must be treated humanely in accordance with the third Geneva Convention, and that the wounded must be given treatment.

Semrau joined the Canadian Forces in August, 2005 after serving three years with the British Army. He deployed with the British to Macedonia and Afghanistan before being released with an exemplary discharge.

The married father of a one-year-old daughter holds a bachelor's degree in psychology from the University of Saskatchewan. His wife, Amelie Lapierre-Semrau, a kindergarten teacher, is expecting their second child.

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